In her Daily Maverick op-ed, Justine Limpitlaw has correctly excoriated Dali Mpofu SC for his performance at the Zondo Commission. The real problem, however, is that this was no outlier. There have been numerous instances recently where counsel have behaved with astounding discourtesy to the Bench, seeking, it would appear, to intimidate judges.
The State Capture Commission alone has experienced a number of occasions when the second-highest ranking judge in South Africa, Deputy Chief Justice Raymond Zondo, has been subjected to treatment that can only cause damage to the legitimacy of the Bench. Forensic skill from the Bar is replaced with bluster. If the Deputy Chief Justice is seen as powerless in seeking to curb this behaviour, how much more so will be a single judge or a magistrate presiding in a high-profile case?
And that leaves aside the citation of judgments that patently do not support the proposition advanced by counsel as well as seeking to “pull rank” on junior colleagues. To his credit, Judge Zondo did issue a statement condemning the conduct of Mpofu, but he stopped short of reporting him to the Bar Council.
https://www.dailymaverick.co.za/article/2021-03-24-dali-mpofus-disrespectful-shut-up-that-reverberated-across-the-nation/
And that highlights the core problem: the legal community appears unable to deal decisively with conduct that undermines the integrity of the legal system. It is a safe bet that the Bar Council or the Legal Practice Council (LPC) will do absolutely nothing to examine Mpofu’s conduct.
Take, for example, the complaint lodged by Judge Owen Rogers, supported by 10 other judges, against attorney Barnabas Xulu’s conduct, when he compiled an affidavit which represented a sustained and totally unjustified attack on the Bench and which, at the very least, required the urgent attention of the LPC. It has dragged its heels, which justifies the drawing of a reasonable inference that it would prefer to do nothing. And, of course, as Xulu is the lawyer acting for Western Cape Judge President John Hlophe, it is unsurprising that the Judge President was not going to step in and protect the integrity of one of his most distinguished judges.
Talking of Hlophe, South Africa continues to wait for any decision regarding the complaints lodged against him. In the case of the complaint that he sought to influence members of the Constitutional Court some 12 years ago, one can only hope that the tribunal which finally heard the evidence relating to this case will deliver its decision in the near future. But the Judicial Service Commission (JSC) has moved with its customary lack of urgency in dealing with the second complaint, brought by Western Cape Deputy Judge President Patricia Goliath against Hlophe.
And in an exhibition of even greater tardiness, save for recommending the temporary suspension of Judge Mushtak Parker, there appears to be no move to determine the merits of the case against him – some six months after the JSC’s decision to recommend his suspension.
The recent move by a coterie of eminent South Africans to defend the Constitution against the sustained attacks, in particular, of people who all appear, on the basis of evidence presented to the Zondo Commission, to be integral to State Capture, is most welcome, indeed necessary. The voices of the profiteers from corruption and the opportunists have to date been met with far too little pushback.
This challenge is great. The preservation of the Constitution requires a legal system that is beyond reproach. In turn, that means that when the legal profession appears congenitally unable to exercise even a modicum of accountability over its own, the idea of governance by way of constitutional norms is impaired.
The Bar Council may be gormless; after all, Mpofu is their representative on the JSC. While he was nominated by Advocates for Transformation, that organisation has many members who would serve on the JSC with distinction rather than seek to undermine the Deputy Chief Justice in front of the nation. So, expect nothing from this body.
But, for the LPC, a new body responsible for setting norms and standards in the legal profession, it is imperative that it shows the requisite commitment to ensure adherence to professional norms and standards.
As for the JSC, only an extreme optimist will see hope that this important body will ensure judicial accountability.
It is surely time for an examination of the JSC and its mandate. It is unwieldy and consideration should be given to the reduction of its composition. For example, why does the president have to nominate four members? But far more important is its disciplinary role. Here, consideration should be given to its disciplinary powers being hived off and dealt with by a separate body consisting of judges and representatives of the legal profession. This body can then develop its own rules of procedure and exercise binding authority over the judiciary, save for impeachment.
The politicians then enter the picture if Parliament has to decide on a finding that impeachment is the appropriate decision.
The upshot has to be that neither judges nor counsel, however eminent, should be immune from the norms and standards that must govern their conduct. DM